Civil procedure — discovery — legal professional privilege — joint privilege — documents sought subject to privilege jointly owned by any of plaintiffs and other lay clients of solicitors’ firm — no real interest in privilege or claim for privilege — privilege should not prevent disclosure as refusal would result in injustice to plaintiff and solicitors

P1 was a Hong Kong company. P2–4 were BVI companies. P1–3 were controlled by H, a solicitor of a sole proprietorship (the Firm). D1–2 were a US limited partnership law firm and D3–8 individual lawyers therein. D9 was a solicitors’ firm. Ps brought proceedings against Ds alleging negligent advice provided in 1999–2000 concerning the restructuring of certain exchange notes (Notes) issued by GBFE (whose holding company was P4), which defaulted on interest payments and engaged Ds to advise it. On the Noteholders’ petition, GBFE was wound up in 2000 resulting in substantial losses to Ps. GBFE’s causes of action were assigned to P4 and P2–4’s causes of action were subsequently assigned to P1. P1 sought discovery by D9 of documents which were highly relevant to one of the central issues of the action, namely the scope of the retainer(s) between D9 and Ps (the Documents). D9 also wished to use the Documents, but believed they were subject to privilege jointly owned by any of Ps and inter aliathree lay clients who were not parties to the action, namely H, who was prepared to provide a written waiver of the privilege but his trustees in bankruptcy disagreed as to whether he had the right to do so; the Firm; and a Hong Kong company which had been dissolved by deregistration in 2009 and whose joint privilege might now belong to the Government as bona vacantia.

Held, granting the application in part, that:

In an action by a former client against his solicitors, there was an “implied waiver” of privilege for documents which were subject to the retainer. This was to avoid injustice where the solicitors needed to refer to privileged documents in their defence (Nederlandse Reassurantie Groep Holding NV v. Bacon & Woodrow (No 1) [1995] 1 All ER 976 applied). (See paras. 22–23.)

Given that events took place almost 20 years ago, there remained no real interest in the joint privilege and/or no one had claimed privilege. In the unusual circumstances here, it was very difficult to see why the joint privilege should prevent disclosure of the Documents when refusal would result in unfairness to D9 and P1. (See paras. 24–29, 31.)

Application

This was an application by the first plaintiff in an action for negligent advice for discovery of documents described as subject to privilege by the ninth defendant-solicitor’s firm. The facts are set out in the judgment.